Citation Nr: 1752272 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-05 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Veteran represented by: George T. Sink, Attorney-at-Law ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from November 1969 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This case previously before the Board in June 2015, where the issue on appeal was remanded for a VA examination and an addendum medical opinion to determine the etiology of the Veteran's bilateral knee disorder. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, the opinion provided in the September 2015 VA examination, failed to follow the remand directives thereby resulting in a Stegall violation. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, in the Board's June 2015 remand, the examiner was directed to provide an addendum opinion wherein the examiner addresses the Veteran's reports of his in-service injury as factual, despite the absence of treatment for his knees in his service treatment records. Additionally, the examiner was advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. It was noted that the absence of evidence of treatment for knee injuries in the Veteran's service treatment records cannot, standing alone, serve as the basis for the a negative opinions. Lastly, the examiner was directed to set forth in detail the medical reasons for accepting or rejecting the Veteran's reports of continuity of symptoms since service. See the June 2015 Board remand. As such, the Veteran underwent a VA examination in August 2015. The examiner provided his findings and opinion in a September 2015 report. The examiner, however, provided a negative nexus opinion and reasoned that although the Veteran reported the bilateral knee disorder began during service, there is no documentation of a traumatic knee injury during service. The examiner added that medical exit evaluation performed in September 1973, does not indicate any ongoing left or right knee problems related to the reported incident in 1972. Thus, the examiner reasoned that the Veteran's current bilateral knee disorder is more associated with post service activities and age related wear and tear. Despite the Board's remand instructions, the examiner used the absence of treatment records as support that the knee condition is not etiologically related to service. As such, a remand to obtain an addendum opinion wherein the examiner addresses the Veteran's reports of his in-service injury as factual, despite the absence of treatment for his knees in his service treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatments records and associate with the claims file. All records/responses received must be associated with the electronic claims file. 2. After obtaining all outstanding records, return the file to the September 2015 VA examiner to issue an addendum opinion regarding the etiology of the Veteran's bilateral knee disorder. If the examiner is no longer available, or otherwise determines that the Veteran should be reexamined, the Veteran should be scheduled for an appropriate VA examination. The claims file (including paper records and/or records in the Virtual VA and VBMS systems) and this remand must be reviewed by the examiner. The Veteran has reported that he injured his knees when fell on his knees during a rocket attack while serving at the Bien Hoa Air Force Base in August 1972 in Vietnam. In this case, the examiner must address whether it is at least as likely as not (50 percent probability or more) that this event led to any current knee disability, left or right. Additionally, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any right or left knee disorder, was caused by or is etiologically related to any incident of active military service. The examiner must provide adequate reasons for each opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for knee injuries in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The medical reasons for accepting or rejecting the Veteran's reports of continuity of symptoms since service should be set forth in detail. 3. If any benefit on appeal remains denied, the originating agency should issue a supplemental statement of the case. After the Veteran and his representative are given opportunity to respond, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).